SUDESH KUMAR Vs. KULDIP RAJ

JUDGEMENT

(1.) THIS is an application against an order passed by the City Judge Jammu by which he has struck out the defence of the defendants purporting to act under the provisions of the Houses and Shops Rent Control Act (hereinafter to be referred to as the Act). The plaintiff had filed a suit for ejectment of the defendant on the ground that he was a bad tenant and had committed several defaults in payment of rent. On 13 -6 -1969 the respondent -plaintiff applied to the court that the defendant may be asked to pay the rent and the arrears, as also to pay the rent month by month. In his application the plaintiff mentioned that rent up to February, 1969, only had been paid. There was no dispute between the parties regarding rent which was to be paid per month. On that application the defendant was asked to file his objections. The defendant admitted the allegations of the plaintiff but he prayed that he should be allowed a months time to deposit the rent and he may be allowed further to deposit rent month to month from August 1969. Thereafter the court ordered that the defendant should deposit the entire rent and arrears within 15 days from the date of the order, i.e., 23 -6 -1969. This order does not appear to have been complied with by the defendant who deposited the rent after the expiry of the time fixed in the order. The court was moved orally by the plaintiff for striking out the defence of the defendant as he had not deposited the rent within the time allowed by the court. The court accordingly by virtue of its order dated 24 -3 -1970 accepted the plaintiffs prayer and struck out the defence of the defendant. Hence this revision.

(2.) MR . Inderdas appearing for the petitioner has submitted that the order of the court below is legally erroneous and is not in conformity with the provisions of S. 12(4) of the Act. The learned counsel submitted that under S. 12(4) unless and until the court had clearly mentioned in its order the consequences of the failure to deposit rent, it was not entitled to strike out the defence of the defendant. In support of his contention he relied upon a judgment of the Gujrat High Court in AIR 1969 Guj. 285. I have gone through that decision of the Gujrat High Court and it presumably supports the contention of the counsel for the petitioner. Sarela J. while dealing with the point in question observed as follow: - "Therefore the consequence that the tenant shall not be entitled to defend the suit -except with leave of the Court is a consequence of the direction issued by the court in that behalf. On a plain reading of the provision the direction must precede the consequence. The direction contemplated is one under which the tenant knows that if he fails to comply with the order of deposit, the consequence as set out in the direction shall follow. Till such direction has been issued, the penal consequence provided cannot follow." On a close scrutiny of this decision, however, it seems to me that the provisions of the Act which was being construed by the Gujrat High Court and those of the present Act are not identical. In the Gujrat case the provisions under S. 11(4) which provided for striking out of the defence ran thus: "Where at any stage of a suit for recovery of rent whether with or without a claim for possession of the premises, the court is satisfied that the tenant is withholding the rent on the ground that the rent is excessive and standard rent should be fixed, the court shall, and in any other case if it appears to the court that it is just and proper to make such an order, the court may make an order directing the tenant to deposit in court forthwith such amount of rent as the court considers to be reasonably due to the landlord. The court may further make an order directing the tenant to deposit in court, monthly or periodically, such amount as it considers proper as interim standard rent during the pendency of the suit. The court may also direct that if the tenant fails to comply with any such order within such time as may be allowed by it, he shall not be entitled to appear in or defend the suit except with leave of the court which leave may be granted subject to such terms and conditions as the court may specify." S. 12(4) of the State Act however runs as follows: "If the tenant contests the suit as regards claim for ejectment, the plaintiff -landlord may make an application at any stage of the suit for order on the tenant -defendant to deposit month by month rent at a rate at which it was last paid and also the arrears of rent if any, and the court, after giving an opportunity to the parties to be heard, may make an order for deposit of rent if any, and on failure of the tenant to deposit the arrears of rent within 15 days of the date of the order or the rent at such rate for any month by the 15th day of the next following month, the court shall order the defence against ejectment to be struck out and the tenant to be placed in the same position as if he had not defended the claim to ejectment. The landlord may also apply for permission to withdraw the deposited rent without prejudice to his right to claim decree for ejectment and the court may permit him to do so." A careful analysis of the two provisions would indicate that whereas in the Gujrat Act the Court was given the discretion to pass an order directing that if the rent was not deposited the defence will be struck down, in the State Act there is no discretion left in the court, but the striking of the defence follows as a matter of operation of law. Furthermore the words the court shall order the defence against ejectment to be struck down clearly show that under our Statute the court has no discretion in the matter and has to strike out the defence if the defendant fails to deposit rent within the time allowed by the Court. In this view of the matter it is manifest that what S. 12(4) of the Act requires is that there should be an application for deposit of rent an order passed by the court fixing a time within which rent and arrears are to be deposited. The consequence which flows from non -compliance of this order is a legal consequence over which the court has no control. Having regard to the mandatory language of S. 12(4) it cannot be said that the court can refuse to strike out defence of the defendant once he fails to deposit rent within the time allowed.

(3.) IN the present case there is an application by the land -lord -plaintiff, asking the court to direct the defendant to deposit rent and the arrears. The section does not require that the applicant should also mention in his application the consequences of the failure to deposit rent which has to follow by operation of law. In these circumstances therefore all the conditions required by S. 12(4) of the Act were present in this case and the learned City Judge was fully justified in passing the order striking out the defence of the defendant. I am fortified in this view by a decision of the Calcutta High Court in AIR 1953 Cal. 600. I might mention that the West Bengal Act contained provisions identical to that contained in the State Act on the subject.